EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into as of
October 18, 2000, by and between Medford Co-operative Bank, a state
chartered stock cooperative bank organized and operating under the laws of
the Commonwealth of Massachusetts and having an office at 60 High Street,
Medford, Massachusetts 02155 ("Bank") and Robert S. Kaminer, an individual
residing at 37 Warren Avenue, Reading, Massachusetts 01867 ("Commercial
Loan Officer").
Witnesseth:
Whereas, Commercial Loan Officer currently serves the Bank in the
capacity of Senior Vice President/Construction Loan Manager; and
Whereas, the Bank is a state-chartered stock institution and is the
wholly-owned subsidiary of Mystic Financial, Inc., a publicly-held Delaware
corporation ("Holding Company"); and
Whereas, the Bank desires to assure for itself the continued
availability of the Commercial Loan Officer's services on the terms and
conditions hereinafter set forth; and
Whereas, the Commercial Loan Officer is willing to continue to serve
the Bank on such terms and conditions;
Now Therefore, in consideration of the premises and the mutual
covenants and conditions hereinafter set forth, the Bank and the Commercial
Loan Officer hereby agree as follows:
Section 1. Employment.
The Bank agrees to continue to employ the Commercial Loan Officer and the
Commercial Loan Officer hereby agrees to such continued employment, during
the period and upon the terms and conditions set forth in this Agreement.
Section 2. Employment Period; Remaining Un-expired Employment Period.
(a) The terms and conditions of this Agreement shall be and remain
in effect during the period of employment established under
this section 2 ("Employment Period"). The Employment Period
shall be for an initial term of three (3) years beginning on
the date of this Agreement. Upon the first anniversary of the
date of this Agreement (an "Anniversary Date"), and on each
Anniversary Date occurring thereafter, the Board of Directors
of the Bank ("Board") shall review the terms of this Agreement
and the Commercial Loan Officer's performance of services
hereunder and may, in the absence of objection from the
Commercial Loan Officer, approve an extension of the Employment
Agreement pursuant to a resolution duly adopted by the members
of the Board.
(b) For all purposes of this Agreement, the term "Remaining Un-
expired Employment Period" as of any date shall mean the period
beginning on such date and ending on the Anniversary Date on
which the Employment Period (as it may be extended pursuant to
section 2(a) of this Agreement) is then scheduled to expire.
(c) Nothing in this Agreement shall be deemed to prohibit the Bank
at any time from terminating the Commercial Loan Officer's
employment during the Employment Period with or without notice
for any reason; provided, however, that the relative rights and
obligations of the Bank and the Commercial Loan Officer in the
event of any such terminations shall be determined under this
Agreement.
Section 3. Duties.
The Commercial Loan Officer shall serve as Senior Vice President of the
Bank, having such power, authority and responsibility and performing such
duties as are prescribed by or under the By-Laws of the Bank and as are
customarily associated with such position. The Commercial Loan Officer
shall devote his full business time and attention (other than during
holidays, approved vacation periods, and periods of illness or approved
leave of absence) to the business and affairs of the Bank and shall use his
best efforts to advance the interests of the Bank.
Section 4. Annual Salary.
In consideration for the services to be rendered by the Commercial Loan
Officer hereunder, the Bank shall pay to him a salary at an initial annual
rate of EIGHTY-SEVEN THOUSAND, ONE HUNDRED AND FORTY-NINE DOLLARS
($87,149.00), payable in approximately equal installments in accordance
with the Bank's customary payroll practices for senior Commercial Loan
Officers. The Board shall review the Commercial Loan Officer's annual rate
of salary at such times, as it deems appropriate, but not less frequently
than once every twelve months, and may, in its discretion, approve an
increase in such annual rate of salary.
Section 5. Employee Benefit Plans and Programs.
During the Employment Period, the Commercial Loan Officer shall be treated
as an employee of the Bank and shall be eligible to participate in and
receive benefits under any and all qualified or non-qualified retirement,
pension, savings, profit-sharing or stock bonus plans, any and all group
life, health (including hospitalization, medical and major medical),
dental, accident and long-term disability insurance plans, and any other
employee benefit and compensations plans (including, but not limited to,
any incentive compensation plans or programs, stock options and
appreciation rights plans and restricted stock plans) as may from time to
time be maintained by, or cover similarly situated employees of, the Bank,
in accordance with the terms and conditions of such employee benefit plans
and programs and compensations plans and programs and consistent with the
Bank's customary practices.
Section 6. Termination of Employment with Severance Benefits.
(a) The Commercial Loan Officer shall be entitled to the severance
benefits described in section 6(b) in the event that;
(i) his employment is terminated by the Bank during the
Employment Period for any reason other than for "cause"
as defined in section 7(b) or
(ii) the Commercial Loan Officer voluntarily resigns following
a "Change of Control" (as such term is defined in section
10(a) hereof) in the manner set forth in section 10(b)
hereof.
(b) Upon the termination of the Commercial Loan Officer's
employment at the Bank under the circumstances described in
section 6(a)(i) or (ii) of this Agreement, the Bank shall have
no further obligations under this Agreement, other than to pay
or to provide the Commercial Loan Officer with:
(i) the compensation he has earned, but which is unpaid, as
of the date of the termination of his employment with the
Bank, such payment to be made at the time and in the
manner prescribed by law applicable to the payment of
wages but in no event later than thirty (30) days after
termination of employment;
(ii) the benefits, if any, to which he is entitled as a former
employee under the employee benefit plans and programs
and compensation plans and programs maintained by the
Bank for employees;
(iii) continued group life, health (including hospitalization,
medical and major medical), dental, accident and long-
term disability coverage plans under the plans and
programs maintained by the Bank for similarly situated
employees until the earlier to occur of:
(A) the date the Commercial Loan Officer first becomes
eligible for such benefit coverage plans under
plans or programs maintained by a subsequent
employee or
(B) the date the Remaining Un-expired Employment Period
terminates;
(iv) within thirty (30) days following his termination of
employment with the Bank, a lump sum payment, in an
amount equal to the present value of the salary that the
Commercial Loan Officer would have earned if he had
continued working for the Bank during the Remaining Un-
expired Employment Period at the highest annual rate of
salary achieved during that portion of the Employment
Period which is prior to the Commercial Loan Officer's
termination of employment with the Bank, where such
present value is to be determined using a discount rate
equal to the applicable short-term federal rate
prescribed under section 1274(d) of the Internal Revenue
Code of 1986 ("Code"), compounded using the compounding
period corresponding to the Bank's regular payroll
periods for its officers, such Agreement in respect of
the period following any such termination; provided,
however, that in the event the Officer's employment with
the Bank terminated following a Change of Control (as
such term is defined in section 10(a) hereof) under the
circumstances described in section 6(a)(ii), then, for
purposes of calculating the lump sum amount payable to
the Officer under this subsection 6(b)(iv), the
"Remaining Un-expired Employment Period" shall be deemed
to be a thirty-six consecutive month period.
Section 7. Termination without Additional Bank Liability.
Except as provided below, the Bank (and its affiliates) will have no
liability to Commercial Loan Officer in the event that the Commercial Loan
Officer's employment with the Bank shall terminate during the Employment
Period on account of:
(a) a voluntary resignation by the Commercial Loan Officer, other
than a voluntary resignation by the Commercial Loan Officer
that occurs within ninety (90) days after the effective date of
a Change of Control;
(b) a determination that the Commercial Loan Officer is eligible
for long-term disability benefits under the Bank's long-term
disability insurance program or, if there is no such program,
under the federal Social Security Act;
(c) the death of the Commercial Loan Officer; or
(d) the discharge of the Commercial Loan Officer for "cause,"
which, for purposes of the Agreement shall mean personal
dishonesty, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure to perform
stated duties, willful violation of any banking law, rule or
regulation, conviction of a felony or final cease and desist
order issued in response to conduct of the Commercial Loan
Officer determined to be substantially deleterious to the Bank,
or any material breach of this Agreement, in each case as
measured against standards generally prevailing at the relevant
time in the savings and community banking industry;
then the Bank (and its affiliates) shall have no further obligations under
this Agreement, other than the payment to the Commercial Loan Officer (or,
in the event of his death, to his estate) of his earned but unpaid salary
as of the date of the termination of his employment, and the provision of
such other benefits, if any, to which he is entitled as a former employee
under the employee benefit plans and programs and compensation plans and
programs maintained by, or covering employees of , the Bank.
(e) for purposes of section 7(d), no act or failure to act, on the
part of the Commercial Loan Officer, shall be considered
"willful" unless it is done, or omitted to be done, by the
Officer in bad faith or without reasonable belief that the
Officer's action or omission was in the best interests of the
Bank and its affiliates. Any act, or failure to act, based
upon authority given pursuant to a resolution duly adopted by
the Board or based upon the written advice of counsel for the
Bank shall be conclusively presumed to be done, or omitted to
be done, by the Commercial Loan Officer in good faith and in
the best interests of the Bank. The cessation of employment of
the Commercial Loan Officer shall not be deemed to be for
"cause" within the meaning of section 7(d) unless and until
there shall have been delivered to the Officer a copy of a
resolution duly adopted by the affirmative vote of three-
fourths of the non-employee members of the Board at a meeting
of the Board called and held for such purpose (after reasonable
notice is provided to the Commercial Loan Officer and the
Officer is given an opportunity, together with counsel, to be
heard before the Board), finding that, in the good faith
opinion of the Board, Officer is guilty of the conduct
described in section 7(d) above, and specifying the particulars
thereof in detail.
Section 8. Covenant Not To Compete.
In the event that the Commercial Loan Officer's employment with the Bank
terminates prior to the expiration of the Employment Period, then for a
period of one (1) year following the date of his termination of employment
with the Bank (or, if less, for the Remaining Un-expired Employment
Period), the Commercial Loan Officer shall not, without the written consent
of the Bank, become an officer, employee, consultant, director or trustee
of any competitor (as herein defined) if in this capacity he would be
working for a competitor originating commercial loans or residential
mortgage loans in Middlesex County or in any other county where a main or a
branch office of the Bank is located on the date of the Commercial Loan
Officer's termination of employment. For this purpose, a "competitor" is
any savings bank, cooperative bank, credit union, savings and loan
association, savings and loan holding company, bank or bank holding
company, or any direct or indirect subsidiary or affiliate of any such
entity. This section 8 shall not apply if the Commercial Loan Officer's
employment is terminated with cause or due to death, or a voluntary or
involuntary termination following a "Change of Control" as defined in
section 10(a) hereof.
Section 9. Confidentiality.
Unless he obtains the prior written consent of the Bank, the Commercial
Loan Officer shall keep confidential and shall refrain from using for the
benefit of himself, or any person or entity other than the Bank or any
entity which is a subsidiary of the Bank or of which the Bank is a
subsidiary, any material document or information obtained from the Bank, or
from its parent or subsidiaries, in the course of his employment with any
of them concerning their properties, operations or business (unless such
document or information is readily ascertainable from public or published
information or trade sources or has otherwise been made available to the
public through no fault of his own) until the same ceases to be material
(or becomes so ascertainable or available); provided, however, that nothing
in this section 9 shall prevent the Commercial Loan Officer, with or
without the Bank's consent, from participating in or disclosing documents
or information in connection with any judicial or administrative
investigation, inquiry or proceeding to the extent that such participation
or disclosure is required under applicable law.
Section 10. Termination Upon or Following a Change of Control.
(a) A Change of Control of the Bank ("Change of Control") shall be
deemed to have occurred upon the happening of any of the
following events:
(i) approval by the stockholders of the Bank of a transaction
that would result in the reorganization, merger or
consolidation of the Bank, respectively, with one or more
other persons, other than a transaction following which:
(A) at least 51% of the equity ownership interest of
the entity resulting from such transaction are
beneficially owned (within the meaning of Rule
13d-3 promulgated under the Securities Exchange Act
of 1934, as amended "Exchange Act") in
substantially the same relative proportions by
persons who, immediately prior to such transaction,
beneficially owned (within the meaning of Rule
13d-3 promulgated under the Exchange Act) at least
51% of the outstanding equity ownership interest in
the Bank; and
(B) at least 51% of the securities entitled to vote
generally in the election of directors of the
entity resulting from such transaction are
beneficially owned (within the meaning of Rule
13d-3 promulgated under the Exchange Act) in
substantially the same relative proportions by
persons who, immediately prior to such transaction,
beneficially owned (within the meaning of Rule
13d-3 promulgated under the Exchange Act) at least
51% of the securities entitled to vote generally in
the election of directors of the Bank;
(ii) the acquisition of all or substantially all of the assets
of the Bank or beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 25%
or more of the outstanding securities of the Bank
entitled to vote generally in the election of directors
by any person or by any persons acting in concert, or
approval by the stockholders of the Bank of any
transaction which would result in such an acquisition;
(iii) a complete liquidation or dissolution of the Bank, or
approval by the stockholders of the Bank of a plan for
such liquidation or dissolution;
(iv) the occurrence of any event if, immediately following
such event, at least 50% of the members of the Board do
not belong to any of the following groups:
(A) individuals who were members of the Board of the
Bank on the date of this Agreement; or
(B) individuals who first became members of the Board
of the Bank after the date of this Agreement
either:
(I) upon election to serve as a member of the
Board of the Bank by affirmative vote of
three-quarters of the members of such Board,
of a nominating committee thereof, in office
at the time of such first election; or
(II) upon election by the stockholders of the Bank
to serve as a member of the Board of the
Bank, but only if nominated for election by
affirmative vote of three-quarters of the
members of the Board of the Bank, or of a
nominating committee thereof, in office at
the time of such first nominating;
provided, however, that such individual's election or
nomination did not result from an actual or threatened
election contest (within the meaning of Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) or
other actual or threatened solicitation of proxies or
consents (within the meaning of Rule 14a-11 of Regulation
14A promulgated under the Exchange Act) other than by or
on behalf of the Board of the Bank; or
(v) any event which would be described in section 10(a)(i),
(ii), (iii) or (iv) if the term "Mystic Financial, Inc."
(the "Company") were substituted for the term "Bank"
therein or any event that results in a "Change of Control
of the Bank" within the meaning of the "Change in Bank
Control Act" and the rules and regulations promulgated by
the Federal Deposit Insurance Agency ("FDIC") or the
Massachusetts Division of Banks as of the date hereof.
In no event, however, shall a Change of Control be deemed to have occurred
as a result of any acquisition of securities or assets of the Bank, the
Company, or a subsidiary of either of them, by the Bank, the Company, or a
subsidiary of either of them, or by any employee benefit plan maintained by
any of them. For purposes of this section 10(a), the term "person" shall
have the meaning assigned to it under sections 13(d)(3) or 14(d)(2) of the
Exchange Act.
(b) In the event of a Change of Control, the Commercial Loan
Officer shall be entitled to the payments and benefits
contemplated by section 6(b) in the event his employment with
the Bank terminates due to his voluntary resignation within
ninety (90) days following the effective date of the Change of
Control.
Section 11. Solicitation.
The commercial Loan Officer hereby covenants and agrees that, during and
after his termination of employment with the Bank, he shall not, without
the written consent of the Bank, either directly or indirectly:
(a) Solicit, offer employment of, or take any other action
intended, or that a reasonable person acting in like
circumstances would expect, to have the effect of causing any
officer or employee of the Bank, the Holding Company or any
affiliate, as of the date of this Agreement, of either of them
to terminate his employment and accept employment or become
affiliated with, or provide services for compensation in any
capacity whatsoever to, any savings bank, cooperative bank,
credit union, savings and loan association, bank, bank holding
company, savings and loan holding company, or other institution
engaged in the business of accepting deposits and making loans;
(b) Provide any information, advice or recommendation with respect
to any such officer or employee of any savings bank,
cooperative bank, credit union, holding company, or other
institution engaged in the business of accepting deposits and
making loans, of either of them that is intended, or that a
reasonable person acting in like circumstances would expect, to
have the effect of causing any officer or employee of the Bank,
the Holding Company or any affiliate as of the date of this
Agreement, of either of them to terminate his employment and
accept employment become affiliated with, or provide services
for compensation in any capacity whatsoever to, any savings
bank, cooperative bank, credit union, savings and loan
association, bank, bank holding company, savings and loan
holding company, or other institution engaged in the business
of accepting deposits and making loans;
(c) Solicit, provide any information, advice or recommendation or
take any other action intended, or that a reasonable person
acting in like circumstances would expect, to have the effect
of causing any customer of the Bank to terminate an existing
business or commercial relationship with the Bank.
provided, however, subsections 10(b) and (c) shall terminate upon the first
one-year anniversary of the Commercial Loan Officer's termination of
employment with the Bank; and, provided, further, that such provision, when
in effect shall only apply to any savings bank, cooperative bank, credit
union, savings and loan association, bank, bank holding company, savings
and loan holding company, or other institution engaged in the business of
accepting deposits and making loans and having its principal office located
in Middlesex County.
Section 12. No Effect on Employee Benefit Plans or Programs.
The termination of the Commercial Loan Officer's employment during the term
of this Agreement or thereafter, whether by the Bank or by the Commercial
Loan Officer, shall have no effect on the rights and obligations of the
parties hereto under the Bank's qualified or non-qualified retirement,
pension, savings, thrift, profit-sharing or stock bonus plans, group life,
health (including hospitalization, medical and major medical), dental,
accident and long-term disability insurance plans or such other employee
benefit plans or programs, or compensation plans or programs, as may be
maintained by, or cover employees of, the Bank from time to time.
Section 13. Successors and Assigns.
This Agreement will inure to the benefit of and be binding upon the
Commercial Loan Officer, his legal representatives and testate or in
testate distributes, and the Bank and its successors and assigns, including
any successor by merger or consolidation or any other person or firm or
corporation to which all or substantially all of the assets and business of
the Bank may be sold or otherwise transferred.
Section 14. Notices.
Any communication required or permitted to be given under this Agreement,
including any notice, direction, designation, consent, instruction,
objection or waiver, shall be in writing and shall be deemed to have been
given at such time as it is delivered personally, or five (5) days after
mailing if mailed, postage prepaid, by registered or certified mail, return
receipt requested, addressed to such party at the address listed below or
at such other address as one such party may be written notice specify to
the other party:
If to the Commercial Loan Officer:
Mr. Robert S. Kaminer
37 Warren Avenue
Reading, Massachusetts 01867
If to the Bank:
Medford Co-operative Bank
60 High Street
Medford, Massachusetts 02155
Attention: Mr. Robert H. Surabian
with a copy to:
Thacher Proffitt & Wood
1700 Pennsylvania Avenue, Suite 800
Washington, DC 2006
Attention: Richard A. Schaberg, Esq.
Section 15. Severability.
A determination that any provision of this Agreement is invalid or
unenforceable shall not affect the validity of enforceability of any
provision hereof.
Section 16. Waiver.
Failure to insist upon strict compliance with any of the terms, covenants
or conditions hereof shall not be deemed a waiver of such term, covenant,
or condition. A waiver of any provision of this Agreement must be made in
writing, designated as a waiver, and signed by the party against whom its
enforcement is sought. Any waiver or relinquishment of any right or power
hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
Section 17. Counterparts.
This agreement may be executed in two (2) or more counterparts, each of
which shall be deemed an original, and all of which shall constitute one
and the same Agreement.
Section 18. Governing law.
This Agreement shall be governed by and construed and enforced in
accordance with the federal laws of the United Sates and, to the extent
that federal law is inapplicable, in accordance with the laws of the
Commonwealth of Massachusetts applicable to contracts entered into and to
be performed entirely within the Commonwealth of Massachusetts.
Section 19. Headings and Construction.
The headings of sections in this Agreement are for convenience of reference
only and are not intended to qualify the meaning of any section. Any
reference to a section number shall refer to a section of this Agreement,
unless otherwise stated.
Section 20. Entire Agreement; Modifications.
This instrument contains the entire agreement of the parties relating to
the subject matter hereof, and supersedes in its entirety any and all prior
agreements, understandings or representations relating to the subject
matter hereof. No modifications of the Agreement shall be valid unless
made in writing and signed by the parties hereto.
Section 21. Required Regulatory Provisions.
The following provisions are included for the purposes of complying with
various laws, rules and regulations applicable to the Bank:
(a) Notwithstanding anything herein contained to the contrary, any
payments to the Commercial Loan Officer by the Bank, whether
pursuant to this Agreement or otherwise, are subject to and
conditioned upon their compliance with section 18(k) of the
Federal Deposit Insurance Act ("FDI Act"), 12 U.S.C. Section
1828(k), and any regulations promulgated there under.
(b) Notwithstanding anything herein contained to the contrary, if
the Commercial Loan Officer is suspended from office and/or
temporarily prohibited from participating in the conduct of the
affairs of the Bank pursuant to a notice serviced under section
8(e)(3) or 8(g)(1) of the FDI Act, 12 U.S.C. Section 1818(e)(3)
or 1818 (g)(1), the Bank's obligations under this Agreement
shall be suspended as of the date of service of such notice,
unless stayed by appropriate proceedings. If the charges in
such notice are dismissed, the Bank, in its discretions, may:
(i) pay to the Commercial Loan Officer all or part of the
compensation withheld while the Bank's obligations
hereunder were suspended, and
(ii) reinstate, in whole or in part, any of the obligations
which were suspended.
(c) Notwithstanding anything herein contained to the contrary, if
the Commercial Loan Officer is removed and/or permanently
prohibited from participating in the conduct of the Bank's
affairs by an order issued under section 8(e)(4) or 8(g)(1) of
the FDI Act, 12 U.S.C. Section 1818(e)(4) or (g)(1), all
prospective obligations of the Bank under this Agreement shall
terminate as of the effective date of the order, but vested
rights and obligations of the Bank and the Commercial Loan
Officer shall not be affected.
(d) Notwithstanding anything herein contained to the contrary, if
the Bank is in default (within the meaning of section 3(x)(1)
of the FDI Act, 12 U.S.C. Section 1813(x)(1)), all prospective
obligations of the Bank under this Agreement shall terminate as
of the date of default, but vested rights and obligations of
the Bank and the Commercial Loan Officer shall not be affected.
(e) Notwithstanding anything herein contained to the contrary, all
prospective obligations of the Bank hereunder shall be
terminated, except to the extent that a continuation of this
Agreement is necessary for the continued operation of the Bank:
(i) By the Commissioner of the Massachusetts Division of
Banks or his designee or the FDIC, at the time the FDIC
enters into an agreement to provide assistance to or on
behalf of the Bank under the authority contained in
section 13(c) of the FDI Act, 12 U.S.C. Section 1823(c)
(ii) By the Commissioner of his designee at the time such
Commissioner or his designee approves a supervisory
merger to resolve problems related to the operation of
the Bank or when the Bank is determined by the
Commissioner to be in an unsafe or unsound condition.
The vested rights and obligations of the parties shall
not be affected.
If and to the extent that any of the foregoing provisions shall cease to be
required or by applicable law, rule or regulation, the same shall become
inoperative as though eliminated by formal amendment of this Agreement.
In Witness Whereof, the Bank has caused this Agreement to be executed
and the Commercial Loan Officer has hereunto set his hand, all as of the
day and year first above written.
------------------------------------
Robert S. Kaminer
ATTEST: Medford Co-operative Bank
By ----------------------------- By --------------------------------
Natalee Anne Webb, Secretary Robert H. Surabian, President & CEO
[Seal]
COMMONWEALTH OF MASSACHUSETTS )
:SS.:
COUNTY OF MIDDLESEX )
On this day of , 2000,
before me personally came Robert S. Kaminer to me known, and known to me to
be the individual described in the foregoing instrument, who, being by me
duly sworn, did depose and say that he resides at the address set forth in
said instrument, and that he signed his name to the foregoing instrument.
------------------------------------
Notary Public
COMMONWEALTH OF MASSACHUSETTS )
:SS.:
COUNTY OF MIDDLESEX )
On this day of , 2000,
before me personally came Robert H. Surabian to me known, and who, being by
me duly sworn, did depose and say that he resides at 35 Hollywood Road,
Winchester, Massachusetts 01890, that he is a member of the Board of
Directors of the Medford Co-operative Bank, the savings bank described in
and which executed the foregoing instrument; that he knows the seal of said
savings bank; that in the seal affixed to said instrument is such seal;
that it was so affixed by order of the Board of Directors of said savings
bank; and that he signed his name thereto by like order.
------------------------------------
Notary Public
